Watson v. Gross

• Decision Date: 08 May 1905
• Citation: 87 S.W. 104,112 Mo.App. 615
• Parties: JOHN W. WATSON, Respondent, v. RICHARD L. GROSS, Appellant
• Court: Kansas Court of Appeals

87 S.W. 104

112 Mo.App. 615

JOHN W. WATSON, Respondent, v. RICHARD L. GROSS, Appellant

Court of Appeals of Missouri, Kansas City

May 8, 1905

Appeal from Atchison Circuit Court.--Hon. Wm. C. Ellison, Judge.

Cause reversed and remanded.

L. J Miles and J. P. Lewis for appellant.

(1) The court erred in giving instruction numbered one for the plaintiff, and also erred on the trial in holding that plaintiff, under the contracts, was not required to remove the timber from the farm, but only from the particular two acres sold by Douglas to plaintiff. Johnson County v Wood, 84 Mo. 489; McCullock v. Holmes, 111 Mo 445; Torbet v. Jeffrey, 161 Mo. 645. Plaintiff under his contract with Douglas, could acquire no greater right than Douglas had. He was bound to know what title Douglas had. (2) The court erred in its theory of the case that the respondent would have the right to leave the wood, indefinitely, on appellant's uncultivated lands, providing only that it was removed from the particular two acres by the 1st of March, 1903. This certainly was not within the spirit of the contract, or the purposes of the parties. (3) At most the respondent Watson and the other timber purchasers, were, so far as Gross was concerned, mere licensees, whose rights depended upon the contract of repurchase, irrevocable, perhaps, within the time permitted in that instrument, but not binding after the expiration of such time. What remained after their license to return for it had terminated, of necessity, belonged to the owner of the land who was in possession. Potter v. Everett, 40 Mo.App. 152-161; Adams v. Liep, 71 Mo. 597; Washburn, Real Prop. (4 Ed.), 632. The license must be strictly followed and must be completed in the time given. 13 Am. & Eng. Ency. Law (1 Ed.), 544; Deland v. Vanstone, 26 Mo.App. 297. (4) The court erred in modifying appellant's instruction numbered one by adding the words "but evidence of any later verbal agreement (if any) concerning the amount of land may be considered by the jury." Such addition not only has no evidence whatever to support it, but ignores the question of knowledge by the appellant of such agreement. He certainly was not bound outside of the two acres mentioned in the repurchase contract.

Hunt & Bailey for respondent.

(1) Respondent sees nothing in the doctrine of license that appellant urges so strongly, that in any way applies to the case at bar. 2 Bouvier's Law Dictionary (14 Ed.), 45; 1 Washburn on Real Estate (1 Ed.), 298. A license furnishes a complete protection for all acts done under it. 13 Am. Eng. Ency. Law (1 Ed.), 546. And the license is construed most strictly against the licenser. (2) We wish, in this place, to again call the court's attention to the clause left out of the contract of repurchase of Gross from Douglas, which is as follows: "Except said Douglas and Douglas shall have the right to collect any remaining pay for such timber so sold." (3) He who wishes to reverse anything done by the court below, must show it to be wrong. Guinn v. Boas, 31 Mo.App. 131; State ex rel. v. County Court, 51 Mo. 521. And it is the duty of the party appealing, and not the other party, to see to the completeness of the transcript. In this case appellant wanted everything but a complete transcript, anything but a full and complete recital of the facts. Vaughan v. Railroad, 34 Mo.App. 141. Upon showing of appellant, respondent is entitled to an affirmance of the judgment below. Cass Co. v. Bank, 157 Mo. 133. (4) Every unlawful taking of chattels belonging to another, with the intention of converting them to the use of another other than the owner, and every unlawful act of taking which destroys or alters the nature of the chattels, and any wrongful assumption of a right to control or dispose of another's property, constitutes a conversion of property. Allen v. McMonagle, 77 Mo. 478; Wainish v. Baker, 42 Mo.App. 439; Mfg. Co. v. Huff, 62 Mo.App. 124; Sharks v. Purdy, 11 Mo. 219; McLachlain v. Barker, 64 Mo.App. 521; Bank v. Brooks, 52 Mo.App. 364; McDonnell v. Marigold, 61 Mo.App. 291; Muller v. Gange, 84 Mo.App. 219.

OPINION

BROADDUS, P. J.

This suit was commenced before a justice of the peace for the conversion of three cords of wood and two hundred posts. On the trial in the circuit court plaintiff recovered judgment and defendant appealed.

In November, 1902, defendant entered into a contract with Daisy and Harlan Douglas to sell them a certain farm situated in Atchison county. At the time of sale no money was paid but it was agreed that they would settle for the price of the farm in February, 1903, by payment of money and a mortgage on the land and other property. It was agreed between defendant and the said Douglases that the latter had the privilege "to cut and remove portions of the timber standing on said premises" but that the same should remain the property of defendant and the proceeds be paid to him; but on final settlement for the price of the land the same was to be credited to the Douglases. Between the two dates mentioned, and while defendant was in Oklahoma, the purchasers made some ten or twelve written contracts with different third parties for the sale of specified parts of the timber standing on the land. When defendant returned from Oklahoma he found these numerous third parties cutting said timber. In order to protect himself, he entered into a new agreement with the Douglases, by which the contract for the sale of the land was cancelled and possession was returned to him. The contract of cancellation recited the fact that the sales of timber had been made by said Douglas to certain parties, mentioning their names and the number of acres specifically each contract contained. This latter contract also provided that the purchasers were to be allowed to remove the timber purchased, but that such removal should be made by the first day of March, next thereafter.

One George Fox and plaintiff held one of these contracts for the purchase of timber; but as Fox sold out to plaintiff the latter was the only interested purchaser of the timber. Plaintiff testified that he had no knowledge whatever of the contents of the contract of cancellation between the defendant and said Douglas. It was shown that Watson's contract had been destroyed by fire, consequently he was compelled to resort to proof of its contents; but it appears that the timber was to be removed by the first day of March, and Watson stated that the contract so provided.

The timber was removed from the land upon which it was cut but was deposited in a gulch at another point on the farm. Watson stated this was done with consent of the Douglases with permission for it to remain there indefinitely, or until he got ready to remove it. Watson also testified that on one occasion Douglas said, in the presence of defendant, that he gave Watson and Fox permission to pile their timber in the gulch and that defendant said: "That is all right. I have no kick coming against Watson and Fox. It is those fellows on the other side. Watson and Fox are all right." Douglas testified that defendant consented that plaintiff's timber might remain in the gulch until he got ready to remove it. He also stated that his contract did not require him to move his timber from the farm but only from the land...